Immigration Reform's Make-or-Break Moment?

Activists for immigration reform block the intersection of Independence Avenue and New Jersey Avenue outside Capitol Hill last week.

Earlier this week, top advocates of immigration reform met at the Washington, D.C., headquarters of the National Democrat Network (NDN), a center-left think tank, to discuss the prospects of getting a bill through Congress by year's end. "The fundamentals are stronger than at any time during the last ten years," Tamar Jacoby, president and CEO of ImmigrationWorks USA, told the audience. "[Immigration reform] is a plane on the runway ready to take off."

Skeptics might counter that the jet has been sitting on the tarmac for months. In early June, House Speaker John Boehner said immigration reform was set to see the president’s desk by the end of the summer. The White House said the same thing. The Senate passed an omnibus bill in July, but August recess came and went without legislation getting through the House. Now, with the looming budget battle soaking up the Beltway’s oxygen, it seems House Republicans intend to slow-walk the bill to death.

But this perception, immigrant-rights supporters contend, rests largely on speculation—and the broad narrative that Republicans can't get anything done. "I've been surprised at how House Republicans' actions haven't been taken seriously," says Simon Rosenberg, NDN's president and founder. "In July, the House Subcommittee on Homeland Security had the single most constructive bill of the entire debate." Rosenberg pointed out that immigration reform is different from Obamacare or the budget: Republicans have not taken an oppositional stance to the president. "This issue has its own set of internal politics, its own trajectory, and committee chairmen working in a constructive manner," he said.

It is true that without more specific comments from House leadership—Boehner has been quiet on the issue since Congress returned from its recess—it's nearly impossible to predict the fate of reform. Over the past few days, there have been encouraging signs that immigration reform hasn't totally fallen off the radarOver the past few days, there have been encouraging signs that the issue hasn't totally fallen off the radar: Facebook founder Mark Zuckerberg, who founded advocacy group Fwd.us to push for reform, is in town, and yesterday House Minority Leader Nancy Pelosi met with immigration-reform bigwigs, including Zuckerberg, on Capitol Hill.

Given how quickly the political winds could shift, a more fruitful question to consider is how immigration reform passes if House Republicans can be convinced to move it forward.

House Republicans, wary of invoking the specter of Obamacare, are not going to pass an omnibus immigration bill—either the Senate's or their own. The approach, as we've seen from the number of immigration-related bills that passed out of committee over the summer, will be piecemeal. Regardless of this difference, Republicans in the House have accepted the broad architecture of the Senate bill: increased enforcement, an expansion in the number of employment-based visas for both high- and low-skilled workers, and a solution to the undocumented problem. But on each of these points, the fault lines and potential pitfalls in the House differ from in the Senate.

The Undocumented

The flash point in the current debate continues to be what to do with the undocumented population, which is estimated at 11 million people. Democrats' hard line is that they will not accept any deal that doesn't grant citizenship to a large portion of this group. The Senate bill met this requirement: Almost everyone gets legal status after registering with the government, and after ten years you're eligible to apply for naturalization. House Republicans, who in 2005 voted simply to deport all 11 million people, have been far more stingy. They've insisted that any solution must "respect the rule of law," which means having the undocumented admit fault and pay fines and penalties. In addition, there should be "no special path" for those currently here illegally to become U.S. citizens. It's a fuzzy concept, but "no special path" basically means we should not create a unique category for this group that lets them "get ahead in line" of those in the legal immigration system. Because the Senate bill creates the new category of "registered provisional immigrant" to deal with the undocumented, it's a no-go in the House.

One solution to this impasse that seems to be getting more and more traction with policy types and lawmakers is not to include a named "pathway to citizenship" in a House bill. One solution that seems to be getting traction with policy types and lawmakers is not to include a named "pathway to citizenship" in the House's version of immigration reform. In place of it, the House bill would provide a "pathway to legalization" that includes admitting guilt as well as paying back taxes and a penalty fee. After the undocumented achieved legal status, they would be merged into existing immigration channels.

But remember that Dems will only accept a deal that ultimately leads to a good chunk of the undocumented getting citizenship. Here's the workaround: Combine a bill that's silent on citizenship with one that provides citizenship to what are called "Dreamers," undocumented immigrants brought to the United States as children. As U.S. citizens, Dreamers could then sponsor their parents for naturalization. Those without citizen children could apply for it under the employment-based immigration system.

Whether Democrats accept this solution depends on how many of the 11 million this proposal covers. The devil's in the details. Under current law, if you're in the country illegally for more than 180 days, you're banned from re-entry for three years. That number jumps to ten if you're here without papers for a year. But even if you're willing to go back to your country of origin and wait, forget about immigrating if you don't have family here and aren't highly educated. Currently, the United States allots a mere 5,000 visas per year for low-skilled laborers, and the system has a backlog of ten years. "We could negotiate with Republicans a policy that has the same outcome as the Senate bill," Sharry said. But if Republicans only provide a path to citizenship for Dreamers but don't increase caps on low-skilled immigration or waive the three- and ten-year bans, "that's not something we'd accept."

Employment-Based Immigration

There is a broad consensus among lawmakers that we need more visas for high-skilled workers. The Senate bill raised the cap from 65,000 to 110,000, and the House proposal would put that number at 155,000. It's low-skilled immigration that's the source of contention. Business wants a larger pool of low-skilled workers to meet demand and keep costs low while labor fears too large an influx will depress wages and weaken employment protections for American workers. The Senate bill allots 20,000 "W" visas for low-skilled workers in the first few years, which ramps up to 220,000. Unlike current visas for low-skilled workers, if you have a "W" visa for long enough, you can use it to apply for citizenship—it's another door.

The process in the House presents an opportunity to revisit these numbers. "Republicans in the House would like to gut the Senate deal on 'W' visas, which could threaten the entire reform project.""Republicans in the House would like to gut the Senate deal on 'W' visas, which could threaten the entire reform project," Sharry says. Jacoby, whose group represents small-business owners who rely on low-skilled labor, counters that failing to set levels high enough could lead to a bottleneck that culminates in another significant population of undocumented immigrants decades down the road. While the precise number of visas allotted is a point of contention and a pitfall, it is far less likely to derail reform than the issue of the undocumented. After all, there is broad agreement on low-skilled immigration: We need more of it.

Enforcement

It was a late-in-the-game deal to increase border enforcement that saved immigration reform in the Senate. In addition to adding 10,000 Border Patrol agents to the current force, the Senate bill would implement a nationwide employment-verification system—currently, employers aren't all required to check your citizenship status—and require Homeland Security to achieve "operational control" of the Southern border. Like "no special path," "operational control" is intentionally fuzzy—it can either mean anything from sealing the border completely to making sure each segment of it has adequate staffing.

To get a bill passed, Democrats basically agreed to throw billions of dollars at the border, which critics have lambasted as wasteful. But Dems are far less concerned with how much we spend than with the way enforcement affects the undocumented. For this reason, advocates for immigrants' rights have made it clear they will walk away if reform contains something like the SAFE Act, a harsh anti-immigrant bill that passed the House Judiciary Committee this summer; it would make undocumented presence in the country a criminal offense, authorize local law-enforcement officers to enforce federal immigration law, and require the Department of Homeland Security to throw violators in jail for even the smallest infractions. The SAFE Act is consistent with the "self-deportation" approach to dealing with the undocumented: The point is to make their lives so miserable, they leave. But some immigrant-rights advocates are open to more moderate proposals like the RESULTS Act, which passed the House Subcommittee on Homeland Security in July and resembles a pared-down version of the Senate bill on enforcement. In deciphering whether a deal can be reached, the amount of spending—wasteful or not—seems to matter less than whether the approach shrinks the path to citizenship. The amount of spending on enforcement matters less than whether the approach shrinks the path to citizenship.So long as enforcement proposals don't knock off too many of the undocumented from being eligible, Democrats are likely to accept them.

When it comes to policy, these are the fault lines and deal breakers. But of course, legislators need to be pushed to act—it's that "momentum" thing. While House Republicans have shouldered a lot of the criticism for failing to move immigration reform forward in the House, observers have started to notice that House Democrats haven't exactly been pushing the point, either. They'll need to do this if anything is going to get passed. "[House Chair of the Judiciary Committee] Bob Goodlatte said he thinks there will be votes in October, and he has the power to bring it up," Rosenberg said. "Democrats need to lean in and accept Republicans at face value—they should praise him, start negotiating dates on the calendar, and put some ideas on the table about what we want." However, Democrats' taking action does not include President Obama, whose involvement would make the issue radioactive to Republicans. The White House realizes this; Obama has kept his involvement behind the scenes and only gone as far as joining the chorus of critics saying Boehner needs to take initiative.

Finally, there's the timing question, and let's get real: Immigration reform is not passing in October, which will be totally consumed by budget negotiations. Whether it gets done by the end of the congressional term, in December, depends on whether those championing reform can be loud enough, and the various factions can compromise. Asking whether immigration reform is dead is tantamount to asking whether this will happen. It might be unsatisfying, but the real answer is, who knows?

About the Author

Gabriel Arana is a senior editor at The American Prospect. His articles on gay rights, immigration, and media have appeared in publications including The New Republic, The Nation, Salon, The Advocate, and The Daily Beast.